Calcutta High Court (Appellete Side)
Ramen Kumar Paul & Another vs Jayanta Paul & Others on 28 April, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
FA 65 of 2023
FAT 327 of 2016
Ramen Kumar Paul & Another
versus
Jayanta Paul & Others
(Pratima Rani Paul, since deceased)
For the Appellants : Mr. Mukteswar Maity,
Mr. Vinay Misra,
Mr. Sumotro Das.
Hearing is concluded on : 4th April, 2023.
Judgment On : 28th April, 2023.
Partha Sarathi Chatterjee, J.
1. The present appeal is directed against the order vide. No. 43 dated
5th April, 2016 passed by the learned Additional District Judge, Fast Track
Court no. 2, Barasat, North 24 - Parganas in O.S. no. 03 of 2012 (New O.S.
No. 223 of 2014) whereby the learned Court below dismissed the suit ex
parte denying to grant of probate in respect of Will and testament of one
Amulya Kumar Paul dated 18.2.2002.
2. One Ramen Kumar Paul and one Arbind Pal (hereinafter referred to
as the petitioners) filed an application under Section 276 of Indian
Succession Act, 1925 (in short, Act of 1925) before the Court of learned
District Delegate at Barasat, which was registered as Misc. Case no. 197 of
2010 (Probate), praying for grant of probate in respect of last Will and
testament of one Amulya Kumar Paul (hereinafter referred to as the testator)
contending, inter alia, that the testator breathed his last on 2.12.2009 at his
permanent place of abode leaving behind his widow, one son and three
daughters, namely, Pratima Paul, Jayanta Paul, Rina Paul, Bina Saha and
Rita Paul and prior to his death, the testator by executing his last Will and
testament dated 18.2.2002, which was duly registered in the office of
Additional Registrar of Assurance, Kolkata on 18.2.2002, bequeathed the
property mentioned in the schedule appended to that application.
3. Jayanta Paul (in short, Jayanta) entered his appearance in Misc.
case no. 197 of 2010 and resisted the grant of probate rendering the case as
contentious cause. Consequently, the case was placed before the learned
District Judge, North 24 Parganas and ultimately, the same was transferred
to the learned Court below for disposal and was registered as O.S. no. 03 of
2012 and subsequently, the same was renumbered as O.S. no. 223 of 2014.
4. Crux of defence taken in his written objection by Jayanta is that
Will was a fraudulent Will and testator had never executed any such Will
and testator was completely ill both mentally and physically at the relevant
of time of execution of the alleged Will and the petitioners being the sons-in-
law of the testator with ill motive misrepresented and insisted the testator to
sign the Will, if the Will at all bears the signature of the testator.
5. Records reveal that although Jayanta filed written objection but
ultimately, he did not contest the suit and accordingly, the suit proceeded ex
parte against him.
6. Records further reveal that Pratima Paul, Rina Paul and Rita Paul,
widow and two daughters of the testator respectively consented to grant of
probate by filing an application supported with affidavit.
7. To substantiate the facts depicted in that application, petitioners
adduced oral accounts of Ramen Kumar Paul and of one Biswajit Ghosh,
who were examined as PW-1 and PW-2 respectively and original Will and
certificate of death of the testator were produced and admitted in evidence
as Ext.-1(a) and Ext.-2.
8. Learned Court below refused to grant probate on the premise that it
is not proved that each of the witnesses had signed the Will in presence of
the testator. Aggrieved thereby, the petitioners has impugned the order, inter
alia, on the grounds that the learned court below did not consider that
Section 68 of Indian Evidence Act has been duly complied with and PW-2
deposed that both the witnesses put their signatures in the office of
Registrar concerned and learned Court below fell in error in refusing to
grant probate.
9. Mr. Maity, learned advocate for the appellants argues that
provisions of Section 63 (c) of Act of 1925 and Section 68 of Indian Evidence
Act, 1872 have been duly complied with and both the witnesses had attested
the Will in the office of Registrar concerned yet the learned Court below
erroneously held that attestation has not been proved and he argues that
three legal heirs of the testator gave no objection to grant of probate and
Jayanta used his opposition to that application for grant of probate but
ultimately, he did not contest the suit yet the learned Court refused to grant
of probate. He asserts that the subject Will is fit to be probated.
10. Section 63 (c) of Act of 1925 mandates that the Will shall be
attested by two or more witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some other person sign the Will, in
the presence and by the direction of the testator, or has received from the
testator a personal acknowledgement of his signature or mark, or of the
signature of such other person; and each of the witnesses shall sign the Will
in the presence of the testator but it shall not be necessary that more than
one witness be present at the same time, and no particular form of
attestation shall be necessary.
11. So, Section 63(c) of Act of 1925 requires - i) that the witnesses
shall see the testator -a) to sign or b) to affix his mark to the Will or c) the
witnesses shall see some other person to sign the Will, in the presence and
by the direction of the testator or d) the witnesses are to receive from the
testator a personal acknowledgment of his signature or mark or the
signature of some other person; - and ii) each of the witnesses shall sign the
Will in the presence of the testator.
12. In the case at hand, testator himself signed the Will. So, to form a
valid attestation, - i) testator was required to sign the Will in presence of the
witness and ii) both the witnesses were required to sign the Will in presence
of the testator.
13. Admittedly, attestation implies something more than the mere
putting down of a signature on a Will in the presence of the testator by a
person who has been the testator sign. It means signing a document for a
particular purpose and the purpose is to testify to the signature of the
testator. In other words, witnesses are required to sign the Will animo
attestandi i.e. with the animus and/or intention to attest the Will and it is
not putting signature on a document alio intuitu. Basically, attestation
means the signing of a document to signify that the attestor is a witness to
the execution of the document. So, another requirement of proper
attestation is that witnesses are required to sign the Will with an intention
to attest the Will and it goes without saying that legislature did not prescribe
any form of attestation.
14. Section 68 of Indian Evidence Act lays down that if a document is
required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence and it goes without saying that
Will is a document which is required to be attested and as per proviso of
Section 68 of Evidence Act, even if the Will is registered, yet to prove its
execution, at least one attesting witness is required to be examined.
15. Questioned Will is registered Will and two witnesses attested the
Will and PW-2, one of attesting witnesses in his affidavit-in-chief
(paragraph-3) stated that he was one of the attesting witnesses of the
subject Will dated 18.2.2002 executed by the testator and except him
another witness Sri Ranajit Kumar Basu signed on the said Will as witness
and in paragraph- 5 thereof, he stated that he and the testator put their
signatures in the office of the Registrar and testator put his signature in his
presence and testator saw him to sign.
16. Rule of appreciation of evidence denounces the practice of culling
out one line isolation from the evidence and to base the judgment on such
isolation statement. Entire evidence of one witness is to be considered as a
whole. From the entire evidence of PW-2, it is reflected that the testator and
two witnesses were present in the office of Registrar at the time of execution
and registration of the Will and PW-2 deposed that both the witnesses
signed the Will as witnesses i.e. with the animus to attest the Will and there
are repetitive judgments on the issues that if it is proved that testator or the
witnesses were present in the same room and/or place and had a clear view
of each of them when they were in the act of signing, it is not necessary for
the witnesses or the testator to witness the movement of fingers of each of
them.
17. Considering the evidence brought on record and on close scrutiny
of the pleadings of the respective parties and considering facts and
circumstances of the case at hand, we are of the view that petitioners have
successfully proved that the Will was validly executed and duly attested and
from the evidence and circumstances, no material has come up to lead us to
hold that Will was shrouded with suspicious circumstances and that the
petitioners have failed to remove those suspicious circumstances.
18. Hence, we hold that petitioners are entitled to get probate in
respect of the last Will and testament of the testator.
19. In conclusion, the appeal succeeds. Order impugned is set aside.
Suit is allowed. Let a probate be granted in respect of the Will executed and
registered on 18.2.2002 by the testator, Amulya Kumar Paul, since deceased
with the copy of the Will annexed, in accordance with the law and upon
payment of requisite court fees.
20. The appeal is, accordingly, disposed of.
21. Let a copy of this judgment along with LCR be sent down to the
learned Court below forthwith.
22. Urgent Photostat copy of this judgment, if applied for, shall be
granted to the parties as expeditiously as possible, upon compliance of all
formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
